Wednesday, February 25, 2015

I often tell students that one of many reasons I find sentencing and related criminal justice issues so fascinating is because truly hard and interesting Supreme Court cases will rarely be resolved via the traditional (and traditionally boring) political splits among the Justices. This reality is dramatically and uniquely on display this morning thanks to a ruling for a federal criminal defendant today in Yates v. United States, No. 13-7451 (S. Ct. Feb. 25, 2015) (available here). Yates has produced this remarkable and unprecedented combination of opinions and votes:

GINSBURG, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C. J., and BREYER and SOTOMAYOR, JJ., joined. ALITO, J., filed an opinion concurring in the judgment. KAGAN, J., filed a dissenting opinion, in which SCALIA, KENNEDY, and THOMAS, JJ., joined.

Here are some money quotes from the start of the plurality opinion authored by Justice Ginsburg:

John Yates, a commercial fisherman, caught undersized red grouper in federal waters in the Gulf of Mexico. To prevent federal authorities from confirming that he had harvested undersized fish, Yates ordered a crew member to toss the suspect catch into the sea. For this offense, he was charged with, and convicted of, violating 18 U. S. C. §1519...

Yates does not contest his conviction for violating §2232(a), but he maintains that fish are not trapped within the term “tangible object,” as that term is used in §1519.

Section 1519 was enacted as part of the Sarbanes-Oxley Act of 2002, 116 Stat. 745, legislation designed to protect investors and restore trust in financial markets following the collapse of Enron Corporation. A fish is no doubt an object that is tangible; fish can be seen, caught, and handled, and a catch, as this case illustrates, is vulnerable to destruction. But it would cut §1519 loose from its financial-fraud mooring to hold that it encompasses any and all objects, whatever their size or significance, destroyed with obstructive intent. Mindful that in Sarbanes-Oxley, Congress trained its attention on corporate and accounting deception and cover-ups, we conclude that a matching construction of §1519 is in order: A tangible object captured by §1519, we hold, must be one used to record or preserve information.

And here are excerpts from the close of the dissenting opinion authored by Justice Kagan:

If none of the traditional tools of statutory interpretation can produce today’s result, then what accounts for it? The plurality offers a clue when it emphasizes the disproportionate penalties §1519 imposes if the law is read broadly. See ante, at 17–18. Section 1519, the plurality objects, would then “expose[] individuals to 20-year prison sentences for tampering with any physical object that might have evidentiary value in any federal investigation into any offense.” Ante, at 18. That brings to the surface the real issue: overcriminalization and excessive punishment in the U. S. Code.

Now as to this statute, I think the plurality somewhat — though only somewhat — exaggerates the matter. The plurality omits from its description of §1519 the requirement that a person act “knowingly” and with “the intent to impede, obstruct, or influence” federal law enforcement. And in highlighting §1519’s maximum penalty, the plurality glosses over the absence of any prescribed minimum. (Let’s not forget that Yates’s sentence was not 20 years, but 30 days.) Congress presumably enacts laws with high maximums and no minimums when it thinks the prohibited conduct may run the gamut from major to minor.... Most district judges, as Congress knows, will recognize differences between such cases and prosecutions like this one, and will try to make the punishment fit the crime. Still and all, I tend to think, for the reasons the plurality gives, that §1519 is a bad law— too broad and undifferentiated, with too-high maximum penalties, which give prosecutors too much leverage and sentencers too much discretion. And I’d go further: In those ways, §1519 is unfortunately not an outlier, but an emblem of a deeper pathology in the federal criminal code.

But whatever the wisdom or folly of §1519, this Court does not get to rewrite the law. “Resolution of the pros and cons of whether a statute should sweep broadly or narrowly is for Congress.” Rodgers, 466 U. S., at 484. If judges disagree with Congress’s choice, we are perfectly entitled to say so — in lectures, in law review articles, and even in dicta. But we are not entitled to replace the statute Congress enacted with an alternative of our own design.

Great stuff here (including a cite by Justice Kagan to the esteemed source pictured above). And surely not to be overlooked is the remarkable reality that Justice Alito, who has a history of almost always backing prosecutors in close cases, turned out in Yates to the be key vote (and author of the actual controlling opinion) for a federal criminal defendant.

Amazing stuff... and I hope some future law review article on Yates considers a title like "One Justice, Two Justice, Red Justice, Blue Justice: What Congress Should Learn from Dr. Seuss about Writing Statutes."

Prez Obama talks about criminal justice reform with members of Congress and...

This piece from The Hill, headlined "Obama meets with lawmakers on criminal justice reform," reports that talk about federal criminal justice reform is continuing among most (but not all) key federal policy-makers:

The bipartisan group of 16 lawmakers included Sen. Rand Paul (R-Ky.) and Rep. Jason Chaffetz (R-Utah), two rising Republican stars who have backed reforms meant to reduce the number of adults in prison. They were joined by Sens. Mike Lee (R-Utah) and Dick Durbin (D-Ill.), who have proposed moderate changes to the mandatory minimum sentences for some nonviolent drug crimes.

Sen. Sheldon Whitehouse (D-R.I.), the Democrat sponsoring a significant update to the nation's primary law dictating how to treat minors in custody, was also in attendance.

Notably absent from the meeting was Sen. John Cornyn (R-Texas), who along with Whitehouse is the sponsor of a major prison reform bill, and Sen. Chuck Grassley (R-Iowa), who chairs the Senate Judiciary Committee and who is backing the juvenile justice bill.

Grassley was the only top member of either the House or Senate judiciary committees not to attend. House Judiciary Committee Chair Bob Goodlatte (R-Va.) and ranking member Rep. John Conyers (D-Mich.) attended the meeting, as did Senate Judiciary Committee Ranking Member Patrick Leahy (D-Vt.).

At a time when congressional Republicans and the White House are at loggerheads over several issues, the meeting was another sign that there is some level of bipartisan agreement that changes must be made to federal criminal justice policies. But what form those reforms might takes remains in question. Some in Congress want reforms made to the mandatory minimums, while others — like Cornyn and Grassley — have expressed a preference for other prison reforms that do not change the drug sentences.

The administration has indicated that it would be open to a range of possibilities.

As long-time readers know, what I think the Obama Administration has truly "indicated" through its work on these matters for six years is that it is always eager to talk about the need for reform and never eager to spend and serious political capital on actually moving needed reforms forward. There has been serious and significant "bipartisan agreement that changes must be made to federal criminal justice policies" for nearly a decade now going back at least to when the Booker ruling invalidated important aspects of the bipartisan Sentencing Reform Act (and even before that if we focus on the crack-powder sentencing disparities).

I had long hoped that Prez Obama and others in his administration, who at least (tepidly) helped secure passage of the (tepid) Fair Sentencing Act in 2010, could and would get bolder and more proactive on criminal justice reforms once reelected. But it is now painfully clear that Prez Obama and his administration has decided that its political and policy energies and capital should always be focused much more on other (more controversial and divisive) issues like gay marriage, immigration and health care.

The title of this post is the title of this notable new article by William Berry II now available via SSRN. Here is the abstract:

The Supreme Court’s conceptualization of the Eighth Amendment over the past decade has focused on narrow exceptions to the ability of the states to punish criminal offenders, excising particular punishments based on characteristics of the offender or crime. What is missing, however, is a set of broader guiding principles delineating the line between acceptable and impermissible punishments. The Court itself, in Kennedy v. Louisiana, acknowledged as much, describing the case law as “still in search of a unifying principle.” In light of this vacuum, this article proposes a new approach to the application of the Eighth Amendment.

The absence of regulation of excessive and disproportionate punishments by state legislatures over the past two decades has resulted in the largest prison population in the history of the human race. Instead of merely being a tool that merely removes a few types of offenses and offenders from the purview of state legislatures, the Eighth Amendment should also serve as a more robust guide to shape state penal practices.

To that end, this Article argues for the development of a series of Eighth Amendment presumptions — guiding principles that would govern the punishment practices of legislatures without excluding them from the conversation. Currently, the Eighth Amendment serves to identify the constitutional “exceptions” to the “rules” promulgated by the legislatures. This Article’s approach would reverse that status quo, with the Court articulating general rules and the legislatures then developing (and justifying through careful study) the exceptions to the rules. Indeed, an examination of the Court’s Eighth Amendment cases suggests this “presumptive” sentiment is already implicit in much of the thinking of the Court.

Part I of the Article briefly explains the shortcomings of the current evolving standards of decency doctrine and its devastating consequences. Part II of the Article explores the concept of presumptions, exploring how presumptions operate and demonstrating their virtues. The Article then argues in Part III for the reimagining of the Eighth Amendment as an Amendment of constitutional presumptions combining elements from the Court’s past cases with the needs arising from three decades of neglecting the decisions of legislatures. Finally, Part IV demonstrates how this conceptual framework would work in practice.

More notable new posts from the Collateral Consequences Resource Center

As regular readers know, I have made a habit of noting here notable posts from the Collateral Consequences Resource Center because the topics covered there are so interesting and get so little attention in the mainstream media (or many other places in the blogoshere). Here are a bunch of new posts from CCRC from recent weeks:

Tuesday, February 24, 2015

"Can prisons predict which inmates will commit more crimes?"

The question in the title of this post is part of the headline of this new lengthy AP article, which follows with the headline "States trying secretive, psychological assessments." Here are excerpts from the piece:

States are trying to reduce prison populations with secretive, new psychological assessments to predict which inmates will commit future crimes and who might be safe to release, despite serious problems and high-profile failures, an Associated Press investigation found.

These programs are part of a national, data-driven movement to drive down prison populations, reduce recidivism and save billions. They include questionnaires often with more than 100 questions about an offender's education, family, income, job status, history of moving, parents' arrest history — or whether he or she has a phone. A score is affixed to each answer and the result helps shape how the offender will be supervised in the system — or released from custody.

Used for crimes ranging from petty thievery to serial murders, these questionnaires come with their own set of risks, according to the AP's examination. Many rely on criminals to tell the truth, and jurisdictions don't always check to make sure the answers are accurate. They are used inconsistently across the country, sometimes within the same jurisdiction. The same defendant might be scored differently in the same crime.

Supporters cite some research, such as a 1987 Rand Corp. study that said the surveys accurately can predict the likelihood of repeat offenses as much as 70 percent of the time if they are used correctly. But even the Rand study, one of the seminal pieces of research on the subject, was skeptical of the surveys' overall effectiveness. It's nearly impossible to measure the surveys' impact on recidivism because they are only part of broader efforts.

Some surveys have the potential to punish people for being poor or uneducated by attaching a lower risk to those who have steady work and high levels of education. The surveys are clouded in secrecy. Some states never release the evaluations, shielding government officials from being held accountable for decisions that affect public safety.

"It is a vast improvement over the decision-making process of 20, 30 years ago when parole boards and the courts didn't have any statistical information to base their decisions on," said Adam Gelb, director of the Public Safety Performance Project at the Pew Charitable Trusts, which is working with the Justice Department to shape reforms nationally....

The Justice Department's position on the surveys is inconsistent. On one hand, the department is helping bankroll this movement by providing millions of dollars to help states develop and roll out new policies. Yet it's also putting on the brakes and is reluctant to use them for the federal prison population.

"Criminal sentences must be based on the facts, the law, the actual crimes committed, the circumstances surrounding each individual case, and the defendant's history of criminal conduct," Attorney General Eric Holder told the National Association of Criminal Defense Lawyers in August. "They should not be based on unchangeable factors that a person cannot control, or on the possibility of a future crime that has not taken place."

Cost savings, however, make these tools appealing to states. North Carolina, for instance, could save $560 million by 2017, a Justice Department report concluded. Between 2011 and 2014, the North Carolina prison population decreased by more than 3,000 people, according to the state. These reforms, including the use of risk assessments, has saved the state nearly $84 million, and it plans to route $32 million of those savings for community treatment programs.

Two notable and timely new reform reports from The Sentencing Project

Via an e-mail from The Sentencing Project (reprinted in part below), I received this summary (with links) to two notable new reports from the group:

[Here are] two new reports from The Sentencing Project documenting changes in criminal justice policy in 2014 and successful advocacy campaign strategies in conservative state environments. The reforms highlighted in these reports represent approaches that lawmakers and advocates can consider to address sentencing policy and collateral consequences at the state level.

The State of Sentencing 2014 highlights policy changes in 30 states and the District of Columbia in both the adult and juvenile justice systems, including:

Scaling back sentences for low-level drug offenses

Reducing barriers to reentry, including employment restrictions and bans on public assistance

Tie vote ends effort to end the death penalty in Montana

As reported in this local article, headlined "House deadlocks on bill to abolish death penalty in Montana," a very red state came had a death penalty repeal bill come (surprisingly?) close to passage. Here are the details:

The state House deadlocked Monday 50-50 on a bill to abolish the death penalty in Montana, likely killing the measure for the 2015 Legislature. Rep. David “Doc” Moore, R-Missoula, the sponsor of House Bill 370, told members to “just vote your conscience” moments before the vote.

He said later that he’s undecided whether to ask the House on Tuesday to reconsider its action on HB370, saying it could be difficult to pick up a single, additional vote to force another emotional debate and vote on the floor.

Monday’s vote fell largely along party lines, with most Republicans against it — but it took three of the House’s 41 Democrats voting “no” to reject the bill, which would abolish the death penalty in Montana and substitute it with life in prison without parole. Montana has two murderers on death row.

The vote also marked the closest that death penalty opponents have come to getting a bill through the Montana House, which has blocked similar efforts for years. Bills to abolish the death penalty have been approved by the state Senate in recent legislatures, only to see them die in the House.

Supporters of the bill argued the death penalty does not act as a deterrent and costs the state millions of dollars on appeals and other prosecutorial costs. Rep. Margie MacDonald, D-Billings, also said state prison workers shouldn’t be put in the position of having to operate “the machineries of death.”...

One longtime supporter of abolishing the death penalty, Rep. Mitch Tropila, D-Great Falls, spoke as though he thought supporters had the votes to pass HB370 on Monday. “This is an historic moment in the Montana House of Representatives,” he said. “It has never voted to abolish the death penalty on second reading. This is a momentous moment, and we are on the cusp of history."...

Opponents, however, offered their own emotion-charged testimony against the measure, saying the death penalty can help prosecutors extract plea bargains out of terrible criminals and spare both the state and the victims’ families the financial and emotional cost of a trial. “How can you put a price on my emotions and what I was going through, with my family?” asked Rep. Tom Berry, R-Roundup, whose son was brutally murdered a dozen years ago. “All this bill does is reward the murderer, handicap the prosecutor … and penalize victims like me.”

Rep. Roy Hollandsworth, R-Brady, who opposed the bill, said those who want to abolish the death penalty should take it to the Montana public as a referendum — but they won’t, because they know they would lose. The public overwhelmingly supports the death penalty, he said.

Monday, February 23, 2015

"What rights do felons have over their surrendered firearms?"

The question in the title of this post is the substance of the title of this helpful SCOTUS argument preview of Henderson v. US authored by Richard Re over at SCOTUSblog. Here are excerpts which highlight why I think of Henderson as an interesting and dynamic sentencing case:

Tuesday, the Court will hear argument in Henderson v. United States, a complex case that offers a blend of criminal law, property, and remedies, with soft accents of constitutionalism. The basic question is this: when an arrested individual surrenders his firearms to the government, and his subsequent felony conviction renders him legally ineligible to possess those weapons, what happens to the guns?

The petitioner, Tony Henderson, was a Border Patrol agent convicted of distributing marijuana, a felony offense. Shortly after being arrested in 2006, Henderson surrendered his personal collection of firearms and other weapons to federal agents as a condition of release during the pendency of his criminal case. According to Henderson, his weapons collection included valuable items that had long been in the family, as well as an “antique.” Moreover, the collection was and remains Henderson’s lawful property. So, starting in 2008, Henderson asked authorities to transfer his weapons collection to someone else. But prosecutors and courts alike declined. Understandably enough, Henderson didn’t want his collection to escheat to the government like so much feudal property. So he’s pressed his rights to the Supreme Court.

The legal issues start with a conflict between a procedural rule and a federal statute. Under Federal Rule of Criminal Procedure 41, the government usually has to “return” a defendant’s lawful property. But that can’t happen in Henderson’s case because a federal criminal law (18 U.S.C. § 922(g)(1)) prohibits convicted felons, including Henderson, from possessing firearms. So if Rule 41 were allowed to operate according to its terms, Henderson would instantly be in violation of Section 922(g)(1). The courts below recognized that result as contrary to federal law and policy. (In a footnote in its merits brief, the federal government acknowledges that some of Henderson’s long-withheld weapons collection actually doesn’t consist of firearms at all. The government accordingly assures the Court that the “FBI is making the necessary arrangements to return the crossbow and the muzzle-loading rifle to petitioner.”)

To get around Section 922(g)(1), Henderson asked the government to transfer his firearms to third parties who are permitted to possess such items – specifically, either his wife or a friend who had promised to pay for them. Those proposed transfers, Henderson points out, wouldn’t result in his own possession of the firearms. And, critically, the proposed transfers would honor Henderson’s continued ownership of the weapons.... While Rule 41 by its terms may authorize only the “return” of property, Henderson argues that the federal district courts have “equitable” authority to direct transfers to third parties....

Without questioning that federal equitable authority operates in this area, the courts below apparently rejected Henderson’s transfer request in part based on the ancient rule of “unclean hands.” Under this venerable maxim, a wrongdoer (whose hands are figuratively dirty) may not seek relief at equity in connection with his own wrongful act. Based on a broad view of that precept, the courts below seemed to say that convicted felons are categorically barred from equitable relief as to their government-held property. Henderson contends that this holding revives ancient principles of “outlawry,” whereby criminals lose the protection of the law, while also running afoul of the Due Process Clause, the Takings Clause, and other constitutional provisions. However, the Solicitor General disputes that the decision below actually rested on this ground and — more importantly — has declined to defend it.

Instead, the federal government defends the result below on the ground that Section 922(g)(1) should be read to prohibit not just felons’ actual possession of firearms, but also their “constructive possession” of such weapons. On this view, impermissible constructive possession occurs when a convicted felon can exert some control over the next physical possessor of a particular item of property. Thus, Henderson would exert constructive possession – barred by federal law – if he could direct the transfer of his firearms to any particular person, including his wife or friend. Such direction, the government contends, would also create an unacceptable risk of letting the firearm find its way back to the felon. A permissible approach, in the government’s opinion, would be for it to transfer weapons to a licensed firearms dealer for sale, with proceeds going to the convicted felon.

Having gotten the federal government to endorse some remedial third-party transfers – a significant development in itself – Henderson asks why a convicted felon can’t at least nominate specific third parties, like a museum or a relative, to receive previously surrendered firearms that double as historical artifacts or family heirlooms....

While the ultimate outcome may turn in part on case-specific facts, the case touches on a number of important public debates. This becomes most obvious when the parties peripherally joust over the Second Amendment. The case has also drawn a number of amici. For instance, the Institute for Justice connects the case to public debate over forfeitures by asserting an aged canon against such forfeitures. Meanwhile, the National Association of Criminal Defense Lawyers and the National Rifle Association of America respectively argue from the Excessive Fines Clause and, of course, the Second Amendment. The Brady Center to Prevent Gun Violence, the government’s only amicus, also joins issue.

Oscar speech by John Legend spotlights the New Jim Crow stat about hyperincarceration of blacks in US

I watched most of last night's Oscar festivities while trying to get some work done and with most of it with a finger on the fast-forward button on the remote control. I did so, in part, because we can always count on the media (both old and new) to give extra attention to anything especially interesting or noteworthy that happens during the telecast.

I am now pleased to learn that one of the interesting and noteworthy Oscar moments getting attention today is a portion of John Legend's acceptance speech. This Washington Post WonkBlog piece, headlined "There’s a disturbing truth to John Legend’s Oscar statement about prisons and slavery," provides the story and its context:

The artists John Legend and Common received an Academy Award Sunday night for "Glory," their song in the film "Selma." In his acceptance speech, Legend called for reform of the U.S. criminal justice system. "There are more black men under correctional control today than there were under slavery in 1850," he noted.

It's true. There are some, as Politifact has written, 1.7 million black men under some form of correctional control, including probation and parole, excluding those held in local jails on any given day. That is about twice the 870,000 or so black men at least 15 years old who were enslaved in 1850, according to the Census.

In some ways, of course, the comparison is misleading. Although there are more blacks under correctional control now than there were slaves before the Civil War, the population has a whole has grown tremendously in that time. The Census that year found that roughly nine in 10 of the nation's 3.6 million blacks were enslaved. By contrast, one in 11 blacks is under correctional supervision today, according to the Pew Center on the States. And it would be wrong to obscure the horrors of slavery by comparing that peculiar institution to today's systems of probation and parole (although in modern prisons, practices such as solitary confinement are indeed profoundly damaging to inmates).

In other ways, though, these numbers conceal the size of our criminal justice system and its consequences, especially for blacks -- in a society that, unlike that of the 1850s, is supposed to be free and equitable.

I am quite bummed, and more than a bit grumpy, that the Supreme Court this morning denied certiorari review via this new order list of the case of Edward Young, who is serving a "mandatory fifteen-year prison sentence for the crime of possessing seven shotgun shells in a drawer." I am bummed because, as detailed in this post, I helped file an amicus brief in support of Young's Eighth Amendment claim in the Sixth Circuit and also in support of his SCOTUS cert petition.

I am grumpy because the Supreme Court's willingness to deny review in this case, without even requiring the feds to file a brief in opposition and without any noted dissents, highlights yet again that modern Supreme Court Justices remain much more concerned with whether the worst-of-the-worst state murderers might feel some momentary pain while being executed than with whether Congress and federal prosecutors have gone to far in their application of extreme mandatory prison sentencing terms. In my amicus brief, I had these concluding sentiments about the Young case and its implications:

The essential facts of this case read like a fictional story about a totalitarian dystopian state imagined by the likes of Franz Kafka or George Orwell: after unintentionally coming into possession 18 of a handful of shotgun shells while helping his widowed neighbor — conduct which is not a crime in his home State or in the vast majority of States in our Union — Edward Young was prosecuted by federal officials using a federal law that mandated a sentencing judge to order Mr. Young to spend the next 15 years of his life locked in a cage. Disconcertingly, this nightmare tale of extreme punishment is not only true, but it has occurred in the United States of America — a country which was supposedly “conceived in liberty,” Abraham Lincoln, Gettysburg Address, and in which school children still recite their commitment to “liberty and justice for all.” Pledge of Allegiance (codified in Title 4 of the United States Code § 4)....

[I]f Mr. Young’s fifteen-year mandatory federal prison term based on his harmless possession of shotgun shells is allowed to remain in place without further review, this Court would essentially signal to Congress that it very well could constitutionally make even “overtime parking a felony punishable by life imprisonment.” Rummel v. Estelle, 445 U.S. 263, 274 n.11 (1980).

Edward Young can, and I hope will, continue to assail his prosecution and sentencing via a 2255 petition, but such actions are subject to all sorts of additional difficulties (including the absence of a right to counsel). Moreover, for me this case was not just about how Young's minor crime was treated by the feds, but whether federal judges believe that the Eighth Amendment provides any limit on the mandatory prison terms that could be imposed by federal authorities. I strongly believe the Framers thought they were doing something about extreme sentences like the one given to Edward Young when they enacted the Eighth Amendment, but it seems no modern federal judges agree with me on this front. Grrr.

Urging more media coverage of the "truly guilty and violent"

The mainstream media and “social justice” journalists treat criminal justice subjects compassionately at times, but the beneficiaries of their compassion diverge. The mainstream media focus on the victims of crime, while social justice journalists focus on victims of the criminal justice system.

The former task is easier, because readers are quick to sympathize with crime victims. The latter task is commendable, because it involves telling the stories of outcasts. Yet, even those of us who take on the latter task still tend to stick to the easier parts of the topic. Our favorite subjects are innocent people who are wrongly convicted.

When we do write about the guilty, we prefer they be nonviolent offenders. We’re particularly partial to petty drug offenders. Among violent offenders, we prefer juveniles.

We fear our readers can’t possibly develop compassion for anyone who robs, beats, rapes, or kills. We ourselves have trouble feeling compassion for such offenders; to do so violates a taboo. Only if the violent offender has the mitigating factor of youth, or sometimes mental illness, are we likely to take on his or her story.

But this means we neglect much that is immensely significant. There are too many drug offenders in prison, but prisons are not mainly holding drug offenders or the nonviolent. Seventeen percent of the 49,000 inmates in Illinois prisons were serving terms for controlled substance crimes, and another 1.6 percent had violated the cannabis control act, as of June 2013 (the most recent figures), according to the Illinois Department of Corrections. That’s less than 19 percent in all who were doing time for drug offenses–compared with 54 percent who’d been convicted of violent offenses. Nationally, the proportion of prisoners serving sentences for violent crimes in 2012 was also 54 percent, according to the Bureau of Justice Statistics.

Stories about the wrongly convicted, and about the drug war, and about juvenile and mentally ill offenders, can lead to much-needed reforms of the criminal justice system. But stories about the truly guilty and violent can have a larger target: our nation’s structural inequality, and the wounds it inflicts every hour, every day, on African-Americans more than any other group, in segregated cities throughout the nation.

Concentrated poverty – resulting from the virulent mix of poverty and racial segregation – yields many poisoned fruits, not the least of which is violence. Children growing up amid concentrated poverty are more likely to witness violence in their neighborhoods, and to experience it in their homes, than children in more advantaged areas. And children growing up amid violence are far more likely to become violent themselves.

There’s a crying need for stories that make the crucial connections between concentrated poverty and violence, and that shift the focus from individual responsibility to our collective culpability. In the context of criminal justice stories, it’s not a connection journalists can make when their subjects are innocent or nonviolent.

You worry that our “risk assessment” tools could disproportionately help white prisoners over minorities. But states across the country have found that risk assessments typically lead to results that are fairer for all groups, including minorities. You yourself wrote last year that data­-based risk-assessment tools have been used in “at least 15 states ...with good results” (editorial, Feb. 17, 2014). And our bill would emphasize “dynamic” risk factors — things prisoners can change — so that all inmates can lower their risk of recidivism....

We agree that we should reform other aspects of our criminal justice system. But no one should minimize the importance of ending the cycle of recidivism, reducing prison costs and helping inmates succeed upon release.

----

CHUCK GRASSLEY: I disagree with your editorial. The reality is that reductions in federal mandatory minimum sentences are misguided. These sentences are vital in obtaining the cooperation necessary to prosecute leaders in the drug trade. The so-­called Smarter Sentencing Act, sponsored by Senators Mike Lee, Republican of Utah, and Dick Durbin, Democrat of Illinois, would arbitrarily cut in half the mandatory minimum sentences for importing, manufacturing and distributing drugs like heroin, PCP, methamphetamine and cocaine. Enacting such a bill during a well­-documented heroin epidemic would be irresponsible.

Both the Drug Enforcement Administration and the United States attorney in Manhattan have warned that terrorist organizations are using the drug trade to fund their operations. Under Supreme Court rulings, mandatory minimum sentences are the only tool available to Congress to ensure that judges impose adequate and more uniform sentences.

According to the United States Sentencing Commission, unlike in the states, virtually no citizen is in federal prison for drug possession. Because a “safety valve” eliminates mandatory minimums and lowers sentences for first-time offenders, most federal drug inmates are repeat offenders who did not respond to shorter sentences, and many have extensive criminal histories, including violence.

Sunday, February 22, 2015

Early report on the early impact of Proposition 47 in California

This new Los Angeles Times article provides an assessment of what we know and do not know so far about the impact of the big criminal justice reform passed by California voters back in November. The lengthy piece is headlined "Prop. 47's effect on jail time, drug rehabilitation is mixed so far," and here are excerpts:

In the months since Proposition 47 became law on Nov. 5, California's criminal justice system is already undergoing dramatic changes — and not always in expected ways. The idea was to reduce incarceration times for nonviolent offenders and focus on rehabilitation while easing jail overcrowding.

On the streets, some people who are committing Proposition 47 crimes are not being arrested, avoiding jail but also the drug treatment that could turn their lives around. Narcotics arrests have dropped by 30% in the city of Los Angeles and 48% in areas patrolled by the L.A. County Sheriff's Department, as busy police officers decide that the time needed to process a case is not worth it.

Even when arrested, drug offenders are often issued a citation to appear in court and face little to no jail time if convicted. Law enforcement officials say they have lost an important tool to deal with those offenders, who remain free to get high again or steal to support their habits. Some drug addicts and their relatives agree, saying the new law allows troubled individuals to hurt themselves and steal with little consequence.

Property crimes, which include burglary, theft and motor vehicle theft, have risen in much of Los Angeles County since Proposition 47 passed, according to a Times analysis of crime data. Through the end of January, property crimes were up 10% in sheriff's territory and up 7% in the city of Los Angeles, compared with the same period a year ago.

Some criminal justice experts caution against drawing conclusions, warning that it is too soon to gauge the new law's effect and that other factors could be responsible for the increase. But to Asst. Sheriff Michael Rothans, who oversees patrol operations for the Sheriff's Department, the connection is obvious: More petty criminals on the streets mean more crimes.

"Why is property crime up? It's because of this," said Rothans, who has urged deputies to continue making drug arrests. "The same people are arrested for narcotics and property crimes. We know the cycle is continuing because we know they should have been in jail."

The new law specifies that the financial savings on the incarceration side be reinvested in truancy, drug treatment and mental health programs. But that provision does not take effect until mid-2016. Without the threat of jail time, fewer defendants are opting for the drug treatment programs that judges sometimes offer as an alternative.

Proposition 47 is at the forefront of a national trend to reduce harsh criminal penalties that led to an explosion in prison and jail populations beginning in the 1980s. It follows a revision to California's three strikes law that limits the maximum penalty to those whose last offense is serious or violent. Along with the shift of nonviolent inmates from state prison to county jails approved by the state Legislature in 2011, Proposition 47 is expected to further transform California's criminal justice landscape.

Already, the new law has had a profound effect on the Los Angeles County jails. With fewer people awaiting trial or serving time for offenses that had previously been felonies, overcrowding has subsided. As a result, jailers are keeping county-sentenced inmates for nearly all their time instead of releasing them early.

Thomas Hoffman, a former police official who was a senior advisor for the Proposition 47 campaign, said law enforcement tends to view locking up criminals as the answer, when many have reoffended after spending time in jail. Theorizing about crime increases and the proposition is premature, he said. "The arrest and rearrest of these minor offenses only postpones crime. It doesn't eliminate it. It's a momentary speed bump in these people's lives," said Hoffman, a former director of the state prison system's parole division as well as a former top official in the Inglewood and West Sacramento police departments.

Lenore Anderson, executive director of Californians for Safety and Justice, which coordinated the Proposition 47 campaign, said it will take time for the state's criminal justice system to adjust to the changes and figure out "how to hold people accountable and stop crime."

The key to the new law's success will be whether the cost savings are indeed spent on drug treatment, said Elliott Currie, a professor of criminology, law and society at the University of California, Irvine. "If it is not going to do that, then we are not going to see any change for the better, and we'll see people out there floundering more than they already are," Currie said.

A number of helpful readers have made sure I did not miss the remarkable story, highlighted in sources as diverse as NPR and The American Conservative, of the remarkable speech by U.S. District Judge Carlton Reeves read to three young white men before sentencing them earlier this month for killing a 48-year-old black man in a parking lot. The speech merits a read in full, and here are excerpts:

Mississippi has expressed its savagery in a number of ways throughout its history — slavery being the cruelest example, but a close second being Mississippi's infatuation with lynchings. Lynchings were prevalent, prominent and participatory. A lynching was a public ritual — even carnival-like — within many states in our great nation. While other states engaged in these atrocities, those in the Deep South took a leadership role, especially that scar on the map of America — those 82 counties between the Tennessee line and the Gulf of Mexico and bordered by Louisiana, Arkansas and Alabama.

Vivid accounts of brutal and terrifying lynchings in Mississippi are chronicled in various sources: Ralph Ginzburg's 100 Years of Lynching and Without Sanctuary: Lynching Photography in America, just to name two. But I note that today, the Equal Justice Initiative released Lynching in America: Confronting the Legacy of Racial Terror; apparently, it too is a must-read....

How could hate, fear or whatever it was transform genteel, God-fearing, God-loving Mississippians into mindless murderers and sadistic torturers? I ask that same question about the events which bring us together on this day. Those crimes of the past, as well as these, have so damaged the psyche and reputation of this great state.

Mississippi soil has been stained with the blood of folk whose names have become synonymous with the civil rights movement like Emmett Till, Willie McGee, James Cheney, Andrew Goodman, Michael Schwerner, Vernon Dahmer, George W. Lee, Medgar Evers and Mack Charles Parker. But the blood of the lesser-known people like Luther Holbert and his wife, Elmo Curl, Lloyd Clay, John Hartfield, Nelse Patton, Lamar Smith, Clinton Melton, Ben Chester White, Wharlest Jackson and countless others, saturates these 48,434 square miles of Mississippi soil. On June 26, 2011, four days short of his 49th birthday, the blood of James Anderson was added to Mississippi's soil.

The common denominator of the deaths of these individuals was not their race. It was not that they all were engaged in freedom fighting. It was not that they had been engaged in criminal activity, trumped up or otherwise. No, the common denominator was that the last thing that each of these individuals saw was the inhumanity of racism. The last thing that each felt was the audacity and agony of hate, senseless hate: crippling, maiming them and finally taking away their lives.

Mississippi has a tortured past, and it has struggled mightily to reinvent itself and become a New Mississippi. New generations have attempted to pull Mississippi from the abyss of moral depravity in which it once so proudly floundered in. Despite much progress and the efforts of the new generations, these three defendants are before me today: Deryl Paul Dedmon, Dylan Wade Butler and John Aaron Rice. They and their co-conspirators ripped off the scab of the healing scars of Mississippi ... causing her (our Mississippi) to bleed again.

Hate comes in all shapes, sizes, colors, and from this case, we know it comes in different sexes and ages. A toxic mix of alcohol, foolishness and unadulterated hatred caused these young people to resurrect the nightmarish specter of lynchings and lynch mobs from the Mississippi we long to forget. Like the marauders of ages past, these young folk conspired, planned, and coordinated a plan of attack on certain neighborhoods in the city of Jackson for the sole purpose of harassing, terrorizing, physically assaulting and causing bodily injury to black folk. They punched and kicked them about their bodies — their heads, their faces. They prowled. They came ready to hurt. They used dangerous weapons; they targeted the weak; they recruited and encouraged others to join in the coordinated chaos; and they boasted about their shameful activity. This was a 2011 version of the nigger hunts....

What is so disturbing ... so shocking ... so numbing ... is that these nigger hunts were perpetrated by our children ... students who live among us ... educated in our public schools ... in our private academies ... students who played football lined up on the same side of scrimmage line with black teammates ... average students and honor students. Kids who worked during school and in the summers; kids who now had full-time jobs and some of whom were even unemployed. Some were pursuing higher education and the Court believes they each had dreams to pursue. These children were from two-parent homes and some of whom were the children of divorced parents, and yes some even raised by a single parent. No doubt, they all had loving parents and loving families....

The simple fact is that what turned these children into criminal defendants was their joint decision to act on racial hatred. In the eyes of these defendants (and their co-conspirators) the victims were doomed at birth. ... Their genetic makeup made them targets....

Today, though, the criminal justice system (state and federal) has proceeded methodically, patiently and deliberately seeking justice. Today we learned the identities of the persons unknown ... they stand here publicly today. The sadness of this day also has an element of irony to it: Each defendant was escorted into court by agents of an African-American United States Marshal, having been prosecuted by a team of lawyers which includes an African-American AUSA from an office headed by an African-American U.S. attorney — all under the direction of an African-American attorney general, for sentencing before a judge who is African-American, whose final act will be to turn over the care and custody of these individuals to the BOP — an agency headed by an African-American.

Today we take another step away from Mississippi's tortured past ... we move farther away from the abyss. Indeed, Mississippi is a place and a state of mind. And those who think they know about her people and her past will also understand that her story has not been completely written. Mississippi has a present and a future. That present and future has promise. As demonstrated by the work of the officers within these state and federal agencies — black and white, male and female, in this Mississippi they work together to advance the rule of law. Having learned from Mississippi's inglorious past, these officials know that in advancing the rule of law, the criminal justice system must operate without regard to race, creed or color. This is the strongest way Mississippi can reject those notions — those ideas which brought us here today....

These sentences will not bring back James Craig Anderson nor will they restore the lives they enjoyed prior to 2011. The court knows that James Anderson's mother, who is now 89 years old, lived through the horrors of the Old Mississippi, and the court hopes that she and her family can find peace in knowing that with these sentences, in the New Mississippi, justice is truly blind. Justice, however, will not be complete unless these defendants use the remainder of their lives to learn from this experience and fully commit to making a positive difference in the New Mississippi. And, finally, the court wishes that the defendants also can find peace.

"PTSD in the Prison System"

The title of this post is the title of this paper by Julie Ann Davis now available via SSRN. Here is the abstract:

The treatment of Veterans with post-traumatic stress disorder in the federal prison system has fallen in quality, if it can ever be said to have been sufficient. This work presents an analysis of PTSD in Veterans, identifies the deficiencies in prison systems to address the mental health aspects of PTSD, and presents solutions to address the needs of our soldiers.

Saturday, February 21, 2015

New Oregon Gov pledges to continue curious capital moratorium created by her corrupt predecessor

As reported in this new Reuters piece, headlined "New Oregon Governor Kate Brown to extend death penalty moratorium," a change in leadership at the top of the executive branch in the Beaver State is apparently not going to bring any change to the state's current peculiar death penalty practices. Here are the details:

Oregon's new Democratic Governor Kate Brown said on Friday she planned to extend a moratorium on executions that her predecessor enacted in 2011, well before an influence-peddling scandal forced him from office earlier this week.

But like fellow Democrat John Kitzhaber, Brown stopped short of formally commuting death sentences for the 34 inmates currently awaiting execution in the state, which has executed only two people in the past half century, both in the 1990s. “There needs to be a broader discussion about fixing the system," Brown said in her first press briefing since she took Oregon's helm on Wednesday. "Until that discussion, I'm upholding the moratorium imposed by Kitzhaber.”

In a major salvo in the nation's long-running battle over capital punishment, Kitzhaber imposed a blanket reprieve on all Oregon death row inmates in 2011, saying he believed the death penalty was morally wrong. He had faced growing calls in the waning days of his administration to commute all Oregon death sentences to life in prison before leaving office following an ethics scandal over accusations his fiancée used her role in his office for personal gain.

But Kitzhaber, who has not been seen publicly since announcing his resignation last week, remained silent on that issue, although he did commute the prison sentence of a young man serving time for attempted murder in a non-capital case.

Brown, who had been Oregon's secretary of state before this week, said she met with Kitzhaber on Monday and he advised her of his legislative priorities and recommendations. In addition to her death penalty plans, Brown told reporters she supports raising the minimum wage, increasing transparency and improving access to public records.

Four years seems to me like plenty of time for the policy-makers and the public in Oregon to have a "broader discussion about fixing the system" used for administering the death penalty in the state. Notably, since Kitzhaber put the moratorium in place, I believe the Oregon legislature has enacted other forms of sentencing reform dealing with prison sentences as well as significant state health-care reforms. In addition, Oregon public policy groups placed on the ballot in both 2012 and 2014 significant legal reform intended to "fix" perceived problems with marijuana laws and policies in the state. If the last four years (and a number of election cycles) have not provided sufficient time for Oregonians to have a "broader discussion about fixing the system," I have a hard time imagining that the next few years are likely to engender such a discussion.

In the end, I seriously doubt that the new Oregon governor (or many others in the state) are really looking forward to having a "broader discussion about fixing the system" used for administering the death penalty in the state. Rather, I think this phrase was the one that the new gov thought would best allow her to duck a controversial, high-profile issue for the time being (and maybe even for the full duration of her term). For a handful of advocates, death penalty policy and practices in any state are very important, but for most citizens and voters the death penalty is a high-salience but low-significance concern. Keeping Kitzhaber's execution moratorium in place allows the new gov to focus on other issues without the distorting distractions that death penalty politics can often create.

The title of this post is the title of this new paper by Michael Patrick Wilt now available via SSRN. Here is the abstract:

The Department of Justice entered into hundreds of deferred and non-prosecution agreements (DPAs and NPAs) with corporations over the last twenty years, and continues to increase the use of these agreements every year. However, there is no academic scholarship that explores whether the DOJ has grounded these criminal settlements in traditional criminal sentencing procedures. Specifically, do these agreements — which can often include hundreds of millions of dollars in penalties — follow the carefully considered principles of the U.S. Sentencing Guidelines for Organizations?

This article considers this question in light of the public choice theory of criminal procedure and concludes that the DOJ is not utilizing the Sentencing Guidelines in a manner consistent with basic notions of government accountability in the criminal justice system. The article uses data collected from over three hundred deferred and non-prosecution agreements and finds that only a small percentage include an analysis of a monetary penalty based on the Sentencing Guidelines. The government’s use of a non-traditional process to resolve corporate criminal cases should be concerning in the absence of an institutional check such as the Sentencing Guidelines. The article urges the DOJ to adopt standardized procedures for future criminal settlements, including a demonstration of the Sentencing Guidelines analysis typically found in plea agreements.

Friday, February 20, 2015

More from ACSBlog's "symposium on racial inequalities in the criminal justice system"

Last week in this post I noted that the ACSBlog kicked off a "two-week symposium on racial inequalities in the criminal justice system" via this post titled "Pervasive Inequalities in the Criminal Justice System." This week brought these additional published posts in this series, al of which should be of special interest to sentencing law and policy fans:

As reported in this local article, "Philadelphia District Attorney Seth Williams has sued Gov. Tom Wolf over the death penalty moratorium he imposed last week." Here the basics:

In a lawsuit filed Wednesday, Williams asks the state Supreme Court to rule Wolf's move a "lawless act," claiming the governor had no legal right to grant a reprieve to convicted murderer Terrance Williams....

The lawsuit filed by the city's Democratic district attorney is the second one the Democratic governor has faced since he was sworn in to office Jan. 20. The Republican-controlled Senate sued Wolf in Commonwealth Court over his decision to fire the executive director of the Open Records Office, which the Legislature created when it updated the state's Right-to-Know Law in 2008.

Wolf's death penalty moratorium, announced Friday, fulfilled a campaign promise. It was criticized by district attorneys, law enforcement and some lawmakers. Some religious leaders and other lawmakers praised it....

Wolf said he will grant a reprieve each time a death row inmate is scheduled for execution but keep the inmates' death sentences intact, which was what he did in the case of Terrance Williams. Williams was scheduled to be executed March 4 for the 1984 robbing and fatal tire-iron beating of another man in Philadelphia.

"The governor took the action to place a moratorium on the death penalty because Pennsylvania's capital punishment system is flawed — it's ineffective, expensive, and many times unjust," Wolf spokesman Jeff Sheridan said Wednesday. "As he stated Friday, the governor will wait for the report being produced by the bipartisan Pennsylvania Task Force and Advisory Commission on Capital Punishment, established by the state Senate, and the recommendations within the report are addressed satisfactorily."

Wolf was within his legal right to grant a reprieve under Article 4, Section 9 of the state constitution, Sheridan added. That section also gives the governor the power to commute sentences and issue pardons.

In his lawsuit, Williams says the governor can grant reprieves only as a temporary measure to allow a defendant to pursue "an available legal remedy." The governor cannot grant open-ended reprieves in cases where there are no legal questions surrounding guilt, the suit states. "Merely characterizing conduct by the governor as a reprieve does not make it so," Williams wrote, citing a successful 1994 lawsuit Northampton County District Attorney John Morganelli filed against Gov. Robert P. Casey to enforce the death penalty against Martin D. Appel and Josoph Henry....

"The scope of the reprieve power is not mysterious or vague, and it is limited," Williams' lawsuit states. "Unlike some states, Pennsylvania does not grant the governor an unlimited at-will power of clemency, without which it is not even possible to posit an arguable ability to impose a moratorium."

The filing by Philadelphia DA Williams, which is styled an&"Emergency Commonwealth Petition For Extraordinary Relief Under King's Bench Jurisdiction," was filed in the Supreme Court of Pennsylvania and is available at this link. I find the filing quite effective and compelling, and I thought these passages were especially notable:

On February 13, 2015, the Governor issued a purported reprieve in connection with his publicly-announced assumption of a constitutionally-nonexistent power to declare a “moratorium” on death sentences in Pennsylvania.

This lawless act by the Governor, improperly and inaccurately characterized as a reprieve — for the act issued in this case is not, in fact, a reprieve — is not within the constitutional powers of the Governor, usurps judicial review of criminal judgments, and is in direct violation of his duty to faithfully execute Pennsylvania law under Article IV, § 2. It is unconstitutional, illegal, and should be declared null and void by this Court....

The alleged reprieve, which is not a reprieve at all, violates the constitutional separation of powers. The constitution requires due process, not the Governor’s personal standard of absolute perfection; and the task of assuring that criminal judgments meet that correct standard is assigned to the judiciary, not the executive.Exercise, by another branch, of an extra-constitutional attempt to disturb settled judgments in criminal cases is an impermissible usurpation of the exclusive function of the judiciary....

In law and in reality, therefore, the Governor seeks to nullify valid, final judgments of sentence in usurpation of the judicial function, and seeks to subject the law governing capital sentencing to the test of his personal standard of satisfaction,which in this instance happens to be a test of infallibility that is impossible for mere mortals to satisfy. This is not permissible in a government that is founded on the principle that the people are to be ruled by laws enacted by their representatives in the legislative process, and not the personal whims of a king or dictator. The constitutional role of the Governor is to execute the law, not sabotage it.

Can Senator Ted Cruz, who says "Smarter Sentencing Act Is Common Sense," get SSA through Congress?

Long-time readers and most federal sentencing policy gurus know about the long-time discussion of the Smarter Sentencing Act. The SSA seemingly had lots of bi-partisan support when got through the Senate Judiciary Committee in the last Congress, but the drug warriors helped ensure it did not get any further.

Now we have a new Congress with new leadership in the Senate and, as reported here, a new introduction of a new version of the SSA, the Smarter Sentencing Act of 2015. In part because new Senate Judiciary Chair Charles Grassley has been a vocal opponent of any significant statutory drug sentencing reform, I am not especially optimistic that the new SSA has a much better chance of passage than the old SSA. But, as the question in the title of this post highlights, the new SSA appears to have an especially prominent new advocate, as demonstrated by this press release from the office of Senator Ted Cruz tited "Sen. Cruz: Smarter Sentencing Act Is Common Sense." Here is an excerpt from Senator Cruz's remarks last week during the introduction of the new SSA:

The issue that brings us together today is fairness. What brings us together is justice. What brings us together is common sense. This is as diverse and bipartisan array of members of Congress as you will see on any topic and yet we are all unified in saying commonsense reforms need to be enacted to our criminal justice system. Right now today far too many young men, in particular African American young men, find their lives drawn in with the criminal justice system, find themselves subject to sentences of many decades for relatively minor non-violent drug infractions. We’ve seen the impact of these kind of reforms in the states, the states are laboratories of democracy. My home state of Texas implemented similar reforms and from 2005 the state of Texas has seen a 22 percent decrease in crime and a 12 percent decrease in expenditures on criminal justice....

All of us agree, if you have violent criminals, if you have criminals who are using guns, who are using violence, who are dealing drugs to children, the criminal justice system should come down on them like a ton of bricks. But at the same time we need to recognize that young people make mistakes, and we should not live in a world of Le Miserables, where a young man finds his entire future taken away by excessive mandatory minimums.

There surely are issues about which Senator Cruz and I might not always agree (even though were educated around the same time at the same two higher-education institutions). But I completely agree with his view that the Smarter Sentencing Act is a common sense reform seeking to address the real problem that "today far too many young men, in particular African American young men, find their lives drawn in with the criminal justice system [and] find themselves subject to sentences of many decades for relatively minor non-violent drug infractions."

Notably, Senator Cruz in the past has not let GOP establishment figures stop him from being an aggressive and persistent voice for legal reforms he considers important. I am hopeful that Senator Cruz will fight the good fight on the SSA and other sentencing reform measures so as not to let old establishment folks like Senator Grassley keep the SSA and other proposals from coming up for a vote in the Senate.

A few recent and older posts on the "conservative politics" of federal sentencing reform: